Bob Carr, Theodor Meron: settlements and recognition

Former Australian Foreign Minister, Bob Carr, has on several occasions cited the well-known opinion of Theodor Meron to Israel’s Prime Minister Levi Eshkol in September 1967, when Mr Meron (now Judge Meron) was Legal Adviser to the Israeli Ministry of Foreign Affairs, in which he concluded that “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention”.

Whilst Mr Carr has not purported directly to cite Theodor Meron’s opinion about the settlements in support of his advocacy of immediate Australian recognition of a Palestinian State, Mr Carr has juxtaposed the question of recognition with the legal status of the settlements. (A recent example was at a talk he gave to a NSW ALP federal electorate council meeting in Sydney on 27 June 2017, which was widely reported in the media).

In much of the public discussion in Australia the two issues have been conflated, and advocates of recognition of a Palestinian state have done nothing to acknowledge that the legal and policy considerations that are relevant to the two issues are different. In fact they have falsely and misleadingly suggested the opposite.

In the interests of accuracy, the ECAJ wrote to Judge Meron and asked him to clarify his views.

Judge Meron has now confirmed by letter that his opinion related to the legality of the settlements only, and that he was not taking, and has never taken, a position on whether any Palestinian entity currently satisfies the legal criteria for statehood and recognition.

According to Judge Meron, the two issues are”wholly distinct”, and there are “no consequences which necessarily follow” from his opinion concerning the legality of settlements “for the separate legal question of contemporary recognition of states”.

With his Honour’s permission we now publish his complete letter.

Although other eminent international lawyers such as the late Julius Stone, Judge Stephen Shwebel and Eugene Rostow, among others, have published contrary opinions to those of Judge Meron concerning the legality of Israel’s civilian settlements in the West Bank, we know of no international lawyer of similar standing who disagrees with Judge Meron’s statement that the settlements issue and the recognition issue are wholly distinct from one another.

As to the latter issue, given what has thus far been an irreconcilable philosophical and political division between the Palestinian Authority and Hamas (whose armed wing has been listed as a terrorist organisation by the Australian Government since 2003), each of which controls different parts of the territory claimed by the Palestinians, there is currently no Palestinian organisation which is capable of asserting its authority and maintaining order throughout that territory. This means that the Palestinians at present do not meet at least one of the essential requirements for a State according to international law (and common sense) namely, a government.

Guy Goodwin-Gill, a barrister and a professor of public international law at Oxford University, represented the Palestinians before the International Court of Justice in the 2004 “Wall” case. He has expressed the following opinion, as apposite now as when it was first published in 2011:

“Until such a time as a final settlement is agreed, the putative State of Palestine will have no territory over which it exercises effective sovereignty, its borders will be indeterminate or disputed, its population, actual and potential, undetermined and many of them continuing to live under occupation or in States of refuge. While it may be an observer State in the United Nations, it will fall short of meeting the internationally agreed criteria of statehood, with serious implications for Palestinians at large, particularly as concerns the popular representation of those not currently present in the Occupied Palestinian Territory.” (Emphasis added)

We note the striking contrast between the legalistic approach purportedly adopted by Mr Carr on the question of Israeli settlements, and his cavalier disregard for well-established legal principles concerning the creation of states and their recognition. The international rule of law has meaning only if it is supported as a general principle, not selectively.

Peter Wertheim is the executive director of The Executive Council of Australian Jewry

Comments

Now that Peter Wertheim has established contact with Judge Meron perhaps he should also ask the Judge the following question:

“Dear Judge Meron

Did you change your well-known 1967 opinion on the applicability of the Geneva Convention – when in 1968 you co-signed with Michael Comay the following advice to Israel’s then Ambassador to the United States – Yitzchak Rabin:
“to tell the Americans that there are unique aspects to the status of the territories and to our status in the territories. Before the Six-Day War, the Gaza Strip wasn’t Egyptian territory, and the West Bank, too, was territory that had been occupied and annexed by Jordan without international recognition. Given this ambiguous, indeterminate territorial situation, the question of the convention’s applicability is complex and unclear prior to a peace agreement that includes setting secure and recognized borders.”

Carr should lecture his Chinese paymaster on their abysmal human rights record before he twists the arms of Labor MPs in NSW on the recognition of Palestine.
His dislike of Israel hss become odious.
Let us pray that his scheming fails and the ALP continues its policy of balance.

Mr Carr’s views on the Jewish-Arab conflict are the product of his distorted thinking on many issues including:

1. He relies on the Meron 1967 opinion but fails to mention that Judge Meron changed his view in 1968 as I pointed out in my earlier post.

2. Carr claims all settlements in the West Bank are illegal.
Wrong – all those settlements are legal under article 6 of the Mandate for Palestine and article 80 of the United Nations Charter – territory-specific legislation that dates back to 1922 and is still valid today.

3. Carr claims that Israel has been spreading settlements as fast as possible to render it impossible to achieve a two-state solution.
Wrong – the settlements cover only 5% of the West Bank territory. Israel made offers to cede its claims to 90% of the West Bank in 2000/1 and 95% in 2008.
There has been no settlement because the Arabs want 100%.

4. Carr claims Israeli Governments have gifted settlers the best land.
Wrong – the land given to settlers has been land that has mainly remained unsettled and undeveloped for the last 3000 years. It comprises State lands and waste lands not required for public purposes as prescribed under Article 6 of the Mandate for Palestine.

5. Carr claims that if the Palestinian Arabs throw up a granny flat without approval in Area C it is promptly demolished by army bulldozers.
Wrong – the granny flats are being thrown up by the European Union without approval to create facts on the ground. Yes – they are being demolished as happens to any illegal structures built in Australia.
The European Union has no right to charge in without authorisation.

6. Carr has asked – If Israel is really open to giving the land back in a peace deal why allow settlements in the first place?

Because the Arabs refused to negotiate with Israel between 1967 and 1993 and Israel was legally entitled to do so. Had the Arabs come to the party sooner the situation would have been different today.

Israel did the same in Gaza and unilaterally disengaged from every square inch of land there as well as a part of the West Bank in 2005 to advance the two-state solution.

Yet between 1948 and 1967 there were no settlements after all the Jews living in the West Bank had been driven out by the invading Transjordanian army. The Arabs could have had their state at any time during those 20 years in precisely the area they now claim for themselves with the stroke of an Arab League pen.

They could have had an even greater area had they not rejected the 1947 UN Partition Plan.

8. Carr finally twigs when he states that historically the aged and corrupt Palestinian leadership has to bear some responsibility and that they’ve let their people down.

Too many offers have gone begging and will not return again given the horrendous events being played out in the Middle East right now.

8. Carr claims the 83% Arab population of the West Bank is being ruled by a racial and religious minority of 17%.

Wrong – 95% of the Arab population live in Areas A and B and their daily lives are completely ruled by the PLO. Only 5% of the Arabs live in Area C under Israeli rule.

NSW Labor Party members need to carefully evaluate Mr Carr’s stated position before plunging headlong into adopting his proposal to recognise a Palestinian State if returned to Government.

Mr Carr might have been a former Premier and Foreign Minister but that alone does not guarantee that his opinions and views are always correct and should be unquestionably followed and supported.

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